Hodge v. White
| Decision Date | 17 August 2016 |
| Docket Number | CIVIL ACTION NO. 13-5-DLB-EBA |
| Parties | BENNY LEE HODGE PETITIONER v. RANDY WHITE, Warden of the Kentucky State Penitentiary RESPONDENT |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court upon Petitioner Benny Lee Hodge's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 12). Hodge, who was sentenced to death in 1986, contends that he is being held at the Kentucky State Penitentiary in violation of the Constitution of the United States. In support of this proposition, Hodge alleges that several errors of constitutional magnitude occurred during his trial, including prosecutorial misconduct, jury tampering, and ineffective assistance of counsel. Hodge has also filed a Motion for Summary Judgment (Doc. # 73), arguing that he is, at a minimum, entitled to a new penalty phase because his attorney failed to present any mitigating evidence at that stage of the trial. Respondent Randy White, Warden of the Kentucky State Penitentiary, has responded to the Petition and the Motion for SummaryJudgment, and Hodge has replied, making this matter ripe for the Court's review. (Docs. # 23, 38, 74, 75, and 76). For reasons stated herein, Hodge's Petition for Writ of Habeas Corpus (Doc. # 12) and Motion for Summary Judgment (Doc. # 73) are hereby denied.
On August 8, 1985, Benny Lee Hodge, Roger Dale Epperson, and Donald Terry Bartley drove to Dr. Roscoe J. Acker's house in Fleming-Neon, Kentucky. (Docs. # 26-12 at 12; 27-7 at 32-33). Hodge and Bartley, posing as FBI agents, walked up to the house and knocked on the door while Epperson waited in the car. (Id.). When Dr. Acker answered, Hodge and Bartley told him that they were investigating one of Dr. Acker's former business associates and that they wished to obtain a statement from him. (Docs. # 26-12 at 12-13; 27-7 at 35-37). After some persuading, Dr. Acker agreed to provide a statement and led them into the house. (Id.). Bartley then grabbed Dr. Acker's daughter, Tammy, and took her into one of the bedrooms at the back of the house, where he tied her up. (Id.). Meanwhile, Hodge tied Dr. Acker up in the kitchen and covered his head with a sheet. (Id.).
Hodge and Bartley contacted Epperson on a two-way radio and told him to enter the house. (Doc. # 27-7 at 37). He did so, and the three men proceeded to ransack each room, looking for valuables. (Docs. # 26-12 at 13; 27-7 at 39). They found a safe in Dr. Acker's bedroom, forced him to open it, and removed the stacks of money that were stored within. (Docs. # 26-12 at 13-14; 27-7 at 40). All told, the men stole guns, jewelry and almost $2 million in cash from the Acker family. (Doc. # 27-7 at 43; 27-8 at 1-3). Once thetheft was complete, the three men decided that they could not leave any witnesses. (Id.). Hodge stabbed Tammy twelve times in the back with a butcher knife taken from the kitchen. (Docs. # 27-7 at 41-43). Bartley used the electrical cord from a curling iron to choke Dr. Acker until he lost consciousness. (Docs. # 26-12 at 14; 27-7 at 41-42). Hodge, Epperson, and Bartley fled to Florida, where they were later arrested by the FBI and transported back to Kentucky to face charges. (Doc. # 23-3 at 4-12).
A Letcher County grand jury indicted Hodge, Epperson, and Bartley on four charges: (1) the murder of Tammy Acker; (2) the attempted murder of Dr. Roscoe J. Acker; (3) first-degree robbery; and (4) first-degree burglary. (Doc. # 23-3 at 19). Epperson retained Lester Burns as his attorney. (Doc. # 23-22 at 23). Hodge hired Dale Mitchell, Burns's former associate, to represent him. (Id.). Curt Davis represented Bartley during most of the pretrial proceedings, but was eventually replaced by Ned Pillersdorf. (Id.). Prior to trial, these attorneys sought extensive discovery, argued for a change of trial venue, fought to suppress several witness identifications based on a photo lineup, and moved the court to sever the trials of their clients. (Docs. # 23-5 at 16-18; 23-6 at 10-20; 23-9 at 23-24; 23-10 at 39-42 and 45-48). Although these efforts were unsuccessful, Judge F. Byrd Hogg granted their requests for individualized voir dire and jury sequestration, recognizing that the case had generated a considerable amount of regional media attention. (Docs. # 23-10 at 50-53 and 23-21 at 37).
Meanwhile, Lester Burns was federally indicted on charges of conspiracy to commit mail fraud and conspiracy to transport stolen money in excess of $5,000 in interstatecommerce. (Doc. # 24-9 at 1-23). As to the latter charge,2 the United States alleged that Burns had knowingly accepted Dr. Acker's stolen money as a retainer for representing Roger Epperson. (Id.). After learning of Burns's indictment, Judge Hogg explained the potential ramifications to Epperson, with one of Burns's associates present.3 (Doc. # 23-17 at 33-35). Epperson affirmatively stated that he wanted Burns to continue representing him. (Id.). Consistent with Epperson's wishes, Burns remained on the case through trial. (Doc. # 25-14 at 4). Hodge's attorney, Dale Mitchell, initially represented Burns in his federal case, but withdrew after the close of Hodge and Epperson's trial due to ethical concerns. (Doc. # 24-8 at 15-19). Burns later pled guilty to the charges of conspiracy to commit mail fraud and conspiracy to transport stolen money in interstate commerce. (Doc. # 24-9).
On June 2, 1986, Hodge and Epperson's trial began. (Doc. # 25-14 at 4). The parties had planned to try Bartley alongside Hodge and Epperson, but his case was severed just before trial because he agreed to turn State's witness. (Docs. # 27-7 at 25-43; 27-8 at 1-60; 27-9 at 1-44; 27-10 at 3-41). Bartley testified that he and Hodge were the ones that posed as FBI agents and gained entry to the house. (Id.). He tied up Tammy, while Hodge bound Dr. Acker. (Id.). Bartley stated that Epperson then came into the house and helped them ransack it. (Id.). According to Bartley, Epperson was the one who stated that they could not leave any witnesses. (Id.). In response, Hodge said "I'll take the girl" and went into the back bedroom where Tammy was tied up. (Id.). Epperson toldBartley, "I got the last one, you do the doc" and handed him a curling iron. (Id.). As Bartley began choking Dr. Acker with the cord of the curling iron, Hodge came back into the kitchen and indicated that he had not been able to strangle Tammy. (Id.). Bartley testified that Epperson opened one of the kitchen drawers and tossed him a knife, which Hodge took into the back bedroom. (Id.). Epperson then explained to Bartley he needed to reposition the cord around Dr. Acker's neck in order to effectively choke him. (Id.). Bartley did as instructed, and choked Dr. Acker until he thought his victim was dead. (Id.).
In addition to Bartley's testimony, Commonwealth's Attorney James Wiley Craft presented testimony from Dr. Acker, the pathologist who autopsied Tammy Acker, local law enforcement officers who investigated the crime, FBI agents who apprehended the three men, and various other witnesses who encountered them in the days before the crime. (Docs. # 26-12 at 11-50; 26-13 at 1-51; 26-14 at 12-51; 26-15 at 1-2 and 12-51; 26-16 at 1-30; 26-17 at 16-37 and 41-42; 26-18 at 1-34 and 36-50; 26-19 at 22-61; 27-1 at 5-13; 27-2 at 2-41; 27-3 at 15-50). The jury also heard from Lawrence Anthony Smith, who was incarcerated alongside Hodge in Florida and briefly served as his confidante. (Docs. # 27-5 at 2-21 and 25-32). Smith testified that Hodge confessed to stabbing a young woman during a robbery in Kentucky. (Id.).
The jury convicted Hodge and Epperson on all charges. (Doc. # 23-12 at 9-23). During the ensuing penalty phase, Mitchell and Burns presented only brief stipulations on behalf of their clients. (Doc. # 27-14 at 5). Hodge's stipulation indicated that he had a wife and three children, a public-job work record, and a home in Tennessee. (Id.). Epperson's stipulation was similarly bare-boned, stating that he had no history of prior criminal activity,that he voluntarily returned to Kentucky to face the charges against them, and that he had a wife and child. (Id.). The jury recommended a sentence of sixty years and death for both men. (Id. at Docs. # 27-13 at 7-8; 27-14 at 37 and 44). Judge Hogg imposed the recommended sentences that same day. (Doc. # 27-14 at 44). Hodge and Epperson promptly filed Motions for a New Trial, which Judge Hogg denied. (Docs. # 23-12 at 51-57 and 71-72; 23-13 at 12-17; 25-1 at 1-46; 25-2 at 1-28).
Hodge and Epperson appealed their respective convictions and sentences to the Kentucky Supreme Court. See Epperson v. Commonwealth, 809 S.W.2d 835 (Ky. 1990). Hodge raised 62 issues on appeal and Epperson presented 69 issues. Id. at 837. The court explained that its opinion would "focus on those issues which we believe are most important, although we have considered and rejected all other assignments of error presented by each of the appellants." Id. at 837-38. It then analyzed eighteen of Hodge's claims in detail. Id.
First, the court concluded that Judge Hogg's refusal to sever Hodge's trial from Epperson's trial did not deprive Hodge of due process. Id. at 838-841. Similarly, Judge Hogg's refusal to grant a new trial based on newly discovered evidence about Bartley did not result in a due process violation. Id. The court also found that Hodge's due process rights were not violated by the prosecutors' conflict of interest or the admission of victim impact evidence. Id. at 841-43.
Next, the court held that Judge Hogg's refusal to grant a continuance or a change of venue did not deprive Hodge of his rights to a fair trial, a rational sentencing, and animpartial jury. Id. at 842. It also concluded that these rights were not violated by...
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